Club v. Coffin

• Decision Date: 29 October 1907
• Docket Number: No. 20,818.,20,818.
• Citation: 82 N.E. 461,169 Ind. 204
• Parties: MAK-SAW-BA CLUB v. COFFIN, Com'r, et al.
• Court: Indiana Supreme Court

169 Ind. 204

82 N.E. 461

MAK-SAW-BA CLUB

v.COFFIN, Com'r, et al.

No. 20,818.

Supreme Court of Indiana.

Oct. 29, 1907.

Appeal from Circuit Court, Starke County; Jno. C. Nye, Judge.

William H. Coffin, as construction commissioner for a public ditch, filed a report. The Mak-Saw-Ba Club filed exceptions, on which there were certain proceedings and an order made, and it appeals. Dismissed.

Osborn, McVey & Osborn, for appellant. H. R. Robbins, W. C. Pentecost, and T. E. Howard, for appellees.

JORDAN, J.

Appellee Coffin, as commissioner, charged with the construction of the public ditch herein involved, filed an amended report, showing the completion of said ditch as ordered by the court. By his report he further showed that some of the assessments were uncollected, and that there were costs and expenses remaining unpaid. Said commissioner reported and recommended the acceptance of the drain, and requested that the court continue the cause for a final report, so that he, as such commissioner, might be able to complete the collection, and make the disbursements as required by law. Appellant, a landowner affected by the construction of said ditch, filed exceptions to the report, going to the question of the completion of the drain, and after a hearing by the court, pursuant to request, it made and entered a special finding upon the questions thus drawn into controversy. October 9, 1905, appellant filed its motion for new trial, and on the same day appellee's attorneys filed their petition for an allowance of attorney's fees in the litigation over said report. January 29, 1906, the court overruled the motion for a new trial, and by its order the drain was “declared completed according to law,” and a judgment was rendered for costs against appellant in favor of appellee, as commissioner, “to which judgment,” as the record states, “the Mak-Saw-Ba Club objects and excepts, and prays an appeal to the Supreme Court.” Time was then given for a bill of exceptions, and a bond was suggested and approved. Immediately following this, according to the record, appellant moved the court to strike out the petition of said attorneys, and thereupon the petition was withdrawn. As the next step, and as a part of the same entry, appellee Coffin filed his petition for an allowance of attorney's fees in said litigation. Appellant moved to strike out this petition, but its motion was overruled, and a trial of said question followed, resulting in the making of an order for such allowance. To the making of this portion of the order appellant objected and excepted and asked time for a bill of exceptions, but it did not pray appeal or suggest a bond. Within the time fixed for the filing of a bond, as provided for in the previous part of said order, appellant filed its bond, reciting that it had appealed from the judgment against it for costs. Appellant's assignments of error go to the question of the acceptance of said drain as completed and the allowance of said attorney's fees.

The threshold question in this case is in regard to our jurisdiction. As this was a proceeding in the circuit court, under the statute relating to the construction of public drains, we assume that it is governed as to the procedure by the Civil Code. Campbell v. Fichter (Ind. Sup.) 81 N. E. 661, and cases cited. The authority to appeal is statutory. Lake Erie, etc., R. Co. v. Watkins, 157 Ind. 600, 62 N. E. 443. Section 644, Burns' Ann. St. 1901, gives the right of appeal from final judgments, and we have no jurisdiction in any other case unless it falls within Acts 1905, p. 490, c. 161; section 658, Burns' Ann. St. Supp. 1905, concerning appeals from certain interlocutory orders. We need not inquire whether that part of the order providing for the payment of attorney's fees authorized an appeal under the latter statute, because, as to the portion of the order or judgment mentioned, appellant did not follow the provisions of the Code concerning the taking of interlocutory appeals. Natcher v. Natcher, 153 Ind. 368, 55 N. E. 86. We are therefore remitted to the question as to whether the order from which this appeal is prosecuted, regarded as a whole, was a final judgment. As far back as Metcalfe's Case, 11 Coke Rep. 68, “it was resolved that no writ of error lies until the last judgment.” The general rule is that a final judgment must leave the case disposed of as to all of the parties, and, as far as is within the power of the court, put an end to the controversy. Terre Haute, etc., R. Co. v. Indianapolis, etc., Co. (Ind. Sup.) 78 N. E. 661, and authorities cited; 2 Ency. of Pl. & Pr. p. 61. There are colorable, if not real, exceptions to the rule, but, as it is founded on the policy of the law to prevent unnecessary appeals, he who asserts that his case is within an exception must show a solid reason for so treating it. Western Union Tel. Co. v. Locke, 107 Ind. 9, 7 N. E. 579; 1 Freeman on Judgments (4th Ed.) § 33; Elliott, App. Proc. § 84. In the section last cited the authors say of the rule: “Its scope is comprehensive, and few exceptions break its force or narrow its operation.” No question becomes res adjudicata until it is settled by a final judgment. 1 Freeman on Judgments (4th Ed.) § 251. The effect of such a judgment is to bring forward, for the purpose of an appeal, all merely interlocutory orders concerning which steps have been duly taken to reserve the questions, but, except as provided by statute, appeals from such orders are denied. One reason for this is that, so long as a cause is in fieri, intermediate orders are subject to modification or rescission by the court. (Boonville National Bank v. Blakey, 166 Ind. 427, 76 N. E. 529; Elliott App. Proc. § 83; 15 Ency. of Pl. & Pr. 352; 23 Cyc. 905), and a further reason is that public policy would be contravened, to say nothing of the statute, by permitting piecemeal appeals. In fact, this court has repeatedly recognized and enforced the rule that it will not decide a cause by piecemeal or in fragments. Abshire v. Williamson, 149 Ind. 248, 48 N. E. 1027, and authorities there cited.

In Western Union Telegraph Co. v. Locke, supra, this court quoted with apparent approval the following declaration of Judge Freeman: “The general rule recognized by the courts of the United States, and by the courts of most, if not all, the states, is that no judgment or decree will be regarded as final unless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of so far as the court had power to dispose of it.” Elliott's App. Proc. § 83; 2 Ency. of Pl. & Pr. p. 254; Galentine v. Brubaker, 147 Ind. 458, 46 N. E. 903; Newark, etc., Plank Road Co. v. Elmer, 9 N. J. Eq. 754. In this latter case the court held that, if a decree or judgment leaves important questions for further adjudication, it is not final. In Elliott's Appellate Procedure, § 83, it is said: “No order is final in such a sense as to constitute a final judgment, unless it disposes of the main case so far as there is power in the trial court to decide upon the questions presented by the issues, no matter how clearly and decisively the order may indicate what the ultimate judgment will be. Until there is an ultimate judgment, the case is not finally disposed of inasmuch as the trial court may change its rulings, *** or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate judgment or decree. A decretal order, although interlocutory in its nature, may, of course, be carried forward and embodied in a final decree and thus become an essential part of that decree, but until it is so embodied in the final decree no appeal will lie. The rule that, no matter how decisive may seem the ruling of the trial court, it is not a final judgment, is well illustrated by the cases in which rulings were made denying a motion for a judgment on a special verdict or on the answers of a jury to special interrogatories, for such a ruling is seemingly as clearly indicative of what the final judgment will be, as it is possible for any order to be, except, of course, the ultimate judgment itself.” In Pfeiffer v. Crane, 89 Ind. 485, a final judgment was thus defined and differentiated from an interlocutory order: “A final judgment is the ultimate determination of the court upon the whole controversy in the action. An order of the court, made in the progress of the cause, requiring something to be done or observed, but not determining the controversy, is an interlocutory order, and is sometimes called an interlocutory judgment.” It was said by the Supreme Court of the United States, in Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. Ed. 73, that “The rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term as used in the acts of Congress giving this court jurisdiction of appeals or writs of error, must terminate the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree which had been rendered.”

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